Hege v. Newsom

• Decision Date: 25 June 1884
• Docket Number: 10,565
• Parties: Hege et al. v. Newsom
• Court: Indiana Supreme Court

96 Ind. 426

Hege et al. v. Newsom

No. 10,565

Supreme Court of Indiana

June 25, 1884

From the Bartholomew Circuit Court.

J. C Orr, S. Stansifer and W. D. Stansifer, for appellants.

N. R Keyes, for appellee.

OPINION

Black C.

The appellee sued the appellants, the complaint containing three paragraphs. The first was upon an account for saw-logs sold and delivered, for hauling the same, for sawing done, and for produce sold and delivered. The second paragraph alleged a contract between the appellee and the appellants for the sale by the former to the latter of 14,398 feet of logs at and for the price of sixty-five cents per hundred feet, and for the hauling of the same by the appellee at and for the price of fifteen cents per hundred feet, and for the sawing of 1,580 inches of logs by the appellee at and for the price of three-fourths of a cent per inch; and alleged performance by the appellee and acceptance by the appellants, and their failure and refusal to pay. The third paragraph alleged the sale by the appellee to the appellants of 14,398 feet of logs, and the receipt of the same by the latter at and for the agreed price of eighty cents per hundred feet, and the failure of the appellants to pay.

The appellants demurred to the first and second paragraphs of the complaint; the demurrers were overruled, and these rulings have been assigned as errors; but the appellants have waived the errors, if any, by failing to discuss the rulings in their brief.

The appellants answered in four paragraphs, the first of which was a general denial; the second was an answer of set-off; the third, pleaded by way of partial defence, set up the unmerchantable character of part of said saw-logs; the fourth paragraph set up the unmerchantable character of a portion of the logs as a counter-claim.

The appellee demurred to the second, third and fourth paragraphs of the answer. The demurrer to the second paragraph was overruled, those to the third and fourth paragraphs were sustained. The rulings upon the demurrers to the third and fourth paragraphs have been assigned as errors.

The appellants filed two additional paragraphs of answer, numbered fifth and sixth, demurrers to which were overruled. The record does not show that a reply was filed, but the parties, without any objection because of the want of a reply, went to trial; and therefore the cause is to be regarded as if there had been a reply in denial to the second, fifth and sixth paragraphs of answer. Counsel for both parties say in their briefs, that the fifth paragraph was substantially the same as the third paragraph, and that the sixth was substantially the same as the fourth. If, then, there was any error in sustaining the demurrers to the third and fourth paragraphs, the appellants were not harmed thereby, and we need not inquire as to the sufficiency of those paragraphs.

There was a verdict for the appellee for $ 112.50. A motion for a new trial made by the appellants was overruled, and judgment was rendered on the verdict.

After the close of the evidence and during the progress of the argument to the jury, counsel for the appellants tendered to the court, and requested it to give to the jury, two special instructions in writing, properly numbered and signed by counsel for the defendants as such. The court, on the ground that these instructions were not presented in time, refused to consider them and refused to endorse thereon, "Refused and excepted to by defendants at the time," or "given," or "given as modified."

This action of the court, shown by bill of exceptions, has been assigned as error. It was also made a cause in the motion for a new trial. If it was erroneous, it was ground for a new trial, and could not here be specially assigned as error. But there was no error in the court's refusal. The statute requires that a party who desires special instructions to be given to the jury shall deliver them to the court before the argument to the jury commences; and he is not entitled to have any consideration given to such instructions tendered to the court after the commencement of the argument to the jury. R. S. 1881, sections 533, 534; Ollam v. Shaw, 27 Ind. 388; Malady v. McEnary, 30 Ind. 273.

On the trial, the appellants asked a witness testifying in their behalf to state "what, if anything, you told John Ritz while he was delivering these logs about any of the logs not being worth anything, or about not receiving them on account of their not being fit to make lumber of." The appellee objected to this question, and the court sustained the objection.

We can not say that this ruling was erroneous, for the reason, if for no other, that the appellants did not state to the court what fact or facts they expected to prove.

This has been decided so often that no citation of authority can be needed.

The appellants excepted to each of the instructions given to the jury. We will consider those which have been noticed by counsel in argument.

The eighth instruction was as follows: "But if you find that the contract between the parties was that the plaintiff was to receive the sum of eighty cents per hundred feet for logs delivered by him, and that this covered the timber cutting and drawing, then the measure of the plaintiff's recovery will be determined by multiplying the...